Donald Trump has been very vocal with his opinions about the H-1B visa program. He has not been clear in terms of what his actual plan for the program is, but earlier this year he was quoted talking about how he would end the use of H-1B as a ”cheap labor program.”

Trump has also stated his view that it’s an absolute requirement to hire American workers “for every visa and immigration program,” which makes no sense; if Americans are hired for every job, then there are no foreign workers and no need for visas. At the same time, Trump admits that the ”U.S. needs more highly skilled people and if we can’t find them in the U.S., we’ll find a way to get them into the U.S.”—which contradicts what he said about all positions being filled by Americans.

Some people argue that there are enough Americans who have the skills and education to take all the skilled positions available and that, therefore, there is no need for a visa or immigration program at all. USCIS has created a 17-month extension to the already existing one year authorization to work to foreign nationals graduating from U.S. universities, in the STEM fields (science, technology, engineering, and math). This was clearly done to encourage those individuals to remain in the U.S., because there isa need for them that is not met by U.S. citizen graduates.

Does Donald Trump practice what he preaches?

So how does this debate apply to Donald Trump in practice? Does he hire only Americans? Does he not use the H-1B program because it is not necessary?

The answer is that not only does Trump use the H-1B program to hire foreign nationals but his companies abuse the program by paying those foreign nationals less than their American counterparts. The rhetoric he espouses about being committed to eliminating rampant widespread H-1B abuse and ending the outrageous practices such as what happened at Disney*, is not only empty talk, it is completely undermined by his companies’ hiring practices..

In one recent case which has now come to light via the courts, a foreign national is earning significantly less than what she was required to be paid by law per an attestation that was made to the Department of Labor before submitting an H-1B petition. She is/was also receiving a lot less than what the equivalent American citizen would earn for that specific job.

Trump Model Management (TMM) is being sued by Alexia Palmer, a Jamaican model who was brought here under the H-1B visa program. She was promised a salary of $75,000 a year in the attorney letter and in the I-129 form, which are used for the H-1B petition. In the Department of Labor conditions applications, she was promised even more than the highest level wage required to be paid, which was $47,000.

In the end, she got somewhere around $5,000 total from TMM over the course of 3 years. If they had not been getting work for her to do, then they could have either:

1. Terminated her contract, at which time she would not be required to get paid any more, or

2. Filed what’s called an Amended H-1B, which allows them to give her a part-time salary based on a minimum hourly wage.

They did neither of those things. They allowed her to be in the U.S. for 3 years and never paid her what was required. The Trump camp is saying that she didn’t file a complaint with the Department of Labor in a timely manner stating that she wasn’t paid. But what they are essentially doing is tying the case up in a long court process. The attorneys defending Trump’s company blamed it on the system and did not admit to tampering with her salary.

“She just didn’t have a very successful modeling career,” said Lawrence Rosen, the attorney representing the Trump agency. The USCIS was clear, however, that the pay requirement applies to “an employer or an agent.” [1] (Click here to read full article on CNN.com)

If Trump’s company has done this in this one instance, is it systematic? And if it is systematic, what makes him and his companies any better than Disney or other companies he accuses of abusing the H-1B program?

* (American workers were supposedly laid off and replaced with immigrant workers, who could be paid less than their American counterparts.)

Please find a brief guide to visa options for U.S. real estate professionals looking to expand their foreign clientele here. This guide comes from several years of attending and presenting at real estate conferences and the questions that have been raised by real estate professionals.

Foreign Nationals: Profile of Real Estate Buyers

1. Investment: These individuals have money to burn, and see brick & mortar as a sound investment vehicle. They may or may not be interested in residing in the U.S.

2. Pied-à-terre: These individuals have principal residence in another country and use property in U.S. as vacation home.They too may or may not be interested in residing in the U.S.

3. Primary Residence: They want to live in the U.S. permanently but may not have the immigration status to do so… yet.

How can you expand your real estate clientele to include foreign customers?

— Marketing is important but the potential buyers may want to live, work, and study in the U.S. and that requires immigration solutions.

— One way is to be able to help identify ways to get your clients to the US. Some people do not have access to the U.S.: If you can pair them up with people who have solutions, you may gain new clients.

— If they are in the U.S. full-time, then they are potentially a constant referral source (as well as a repeat customer).

— Selling to employment-authorized visa holders and green card holders mean you can also secure buyers who need a mortgage, so you are not limited to cash-only buyers.

Foreign Investors: 5 Common Profiles

1) Types of Investors: Foreign Students

Foreign Students are usually on an F-1 student visa, which only covers them for the term of study + one year of OPT (Optional Practical Training). They cannot remain in the U.S. unless they are sponsored for employment. Last year only 85,000 visas were available for all foreign university graduates, so odds are low.

Many foreign students who come here to study desire to remain in the U.S. because the cost of education is so high & chances for scholarships and loans are so low, students generally come from upper-class families with substantial resources.

Options for Students

— E-2 visa: For students from countries which have a bilateral treaty with the U.S., they can get a visa to run a start-up or buy an existing business.

— EB-5: For students who do not come from a treaty country (including BRIICS countries), they can invest passively in any project which will create at least 10 full-time jobs. Examples include restaurants, hotels, assisted living centers, factories, etc.

— Funds need to be legally obtained, though need not have to be earned. Funds can be gifted by family members.

2) Types of Investors: Professionals (Employees)

“Un pied et demi” is an idiom that translates into “one and a half feet in the U.S.,” meaning: Foreign professionals who are employed by U.S. employers; they usually come in under 3 categories:

1. H-1B are university degree holders.

2. E-1/E-2 are treaty-based companies set up in U.S. to sponsor people from the same country.

3. L-1 are when a foreign parent company transfers foreign employees to a U.S. subsidiary.

Employees – Why are they such great potential clients?

Foreign nationals with any of these three visa classifications are deemed to have “dual intent.” This means they are not required to maintain a foreign residence, which makes them prime candidates for buying a U.S. residence. They are the most likely to be sponsored for green cards and become permanent residents. They are also eligible for mortgages with many mortgage lenders.

3) Types of Investors:Entrepreneurs/Business Owners

Entrepreneurs and business owners overseas can launch new U.S. companies and can get visas to run the US operations. Since they are basing their visas on either investment or expansion of an existing business, they have money and make for good potential clients. The applicable visa classifications carry dual intent and are eligible for green cards.

4) Types of Investors: Stars

“Stars” means anyone who is considered to have extraordinary ability and at the top of their field. This can be movie stars, serial entrepreneurs, well-known scientists, researchers, journalists, you name it! (No world-famous criminals!) They do not require a sponsor: Self-sponsored petitions can be fast-tracked and processed very quickly.

5) Types of Investors: Retirees with money

While this may be more relevant in Florida or Arizona, foreign nationals wanting to retire in the U.S. can do so, if they have a significant amount of extra money: The EB-5 program allows them to invest in a program or project that meets the job creation requirements for a permanent green card.

Very important caveat: A green card CANNOT be obtained by simply investing in real estate. If 10 full-time jobs are not created as a direct result of their investment, they will not qualify for a permanent green card!!

How to use EB-5

EB-5 allows the broker to “package” the property to be sold as a “combo” of sorts. There are two separate investments: The EB-5 investment and the property purchase. Working with an EB-5 project allows you to use a global budget which takes into consideration the cost of EB-5, and gives you a ceiling of the remaining funds to work with.

For example: Foreign investor has $2 million overall to invest and wants a green card for himself, his wife and their three minor children. The EB-5 project requires $500k plus $100k in administrative / legal / processing fees. This gives you a budget of $1.4 million to work with for your property sale.

Take-Home Lessons

In order to attract more foreign national clients, it is good to be minimally familiar with the different options foreign nationals have to procure temporary and permanent residence in the U.S., and the visa classifications that allow them to reside here and get mortgages.

Many times, helping foreign national clients to find a solution to their immigration needs will help you get the client and keep them for the long term. It can also generate more long-term potential referral sources. If you can’t be their problem-solver and resource, they may find someone else who can!Make sure to have someone in your wheelhouse who understands these issues thoroughly in order to be able to maximize your chances of closing the deal, and opening the door to an unlimited amount of future clients!

On June 24, 2015, the Secretary of the Department of Homeland Security designated Nepal as a country qualifying for Temporary Protected Status (commonly referred to as “TPS”). Many individuals from Nepal are now faced with the question of whether or not to apply for TPS or asylum. To help assist those potentially facing this dilemma, I want to provide a brief explanation regarding the difference between the two benefits.

Temporary Protected Status is a temporary immigration benefit that allows qualifying nationals from a designated country the right to remain in the United States legally until a specific date. TPS also authorizes qualifying nationals to obtain a work permit for the duration of their authorized stay. Some people may also qualify to receive authorization from the United States Citizenship and Immigration Service (USCIS) to leave the United States, travel to Nepal, and then re-enter the United States.

In order to be eligible for Nepali TPS, you must provide evidence to USCIS of the following:

1. That you have continuously resided, which means you have been physically present, in the United States since June 24, 2015.

2. That you are a national of Nepal. If you have no nationality (for example you are a Tibetan or Bhutanese refugee), you may still qualify if you can show that the country you last resided in was Nepal.

3. That you have not been convicted of a felony or 2 or more misdemeanors in the United States, and that you are not inadmissible to the United States on other security-related grounds.

TPS is granted on a case-by-case basis, which means that you must apply for TPS in order to receive it. The last date that you can apply is December 21, 2015. If you do not apply by December 21, 2015, you will not be eligible to receive TPS.

Applying for Both TPS and Asylum

It is important to note that TPS is a TEMPORARY immigration benefit and does not lead to lawful permanent resident status. However, you can apply for TPS in addition to other permanent immigration benefits such as asylum. While TPS is available to anyone who meets the qualifications listed above, asylum is a benefit that is only available to those that are able to prove that they were persecuted in the past, or that they fear future persecution on account of a protected ground.

If you believe that you may qualify for both benefits, it is important to understand that asylum leads to permanent legal status in the United States and TPS does not. Furthermore, if you apply for asylum and TPS, you cannot return to Nepal or your asylum claim will be deemed abandoned.

There may be an advantage, however, to applying for both benefits: If you are granted TPS and it is extended by the government (which has happened with many other TPS designated countries), you may remain in a protected status even if your asylum claim is denied.

In our recent blog regarding Steve’s trip to Tibet in May of this year, he noted the oppressive conditions under which Tibetans have been suffering since the PRC invaded in 1951. The continued persecution of the Tibetan people by the People’s Republic of China (PRC) has also been well-documented by human rights advocacy groups and the United States Department of State. As a result, it is possible for many Tibetans now in the United States or traveling to the U.S. to qualify for asylum protection under the American immigration laws. It is our aim at SMA to help as many of those people as we can.

To qualify for asylum in the United States a foreign national must show:

— That he or she has been persecuted in the past or has a well-founded fear of future persecution, on account of his or her race, religion, nationality, membership in a particular social group, or political opinion; and

— That the government of his or her country of nationality, or in the case of an individual who is stateless, the government of the country where he or she last habitually resided, is unwilling or unable to protect him/her from such persecution.

This is usually shown through a combination of oral testimony and documentary evidence which are presented to an Asylum Officer or an immigration judge after the foreign national has filed an asylum application with the United States Citizenship and Immigration Services (USCIS).

The asylum application must be filed within 1 year of arrival in the United States unless it can be shown that 1 of the 2 exceptions to the one-year filing deadline applies. It is also possible for a foreign national who is in deportation or removal proceedings, to raise a claim for asylum as a defense to removal, however this can only be done in front of an immigration judge.

There is no set list of what treatment constitutes persecution. Rather, there is a wide-range of treatment that often, when combined, is considered sufficiently serious by the courts to constitute persecution. Because of this, it is extremely important for an individual who believes that he or she has been persecuted, to speak with a qualified immigration attorney about whether or not they are eligible to apply for asylum.

While the process of applying for asylum protection can be a lengthy one, asylum is an exceptional benefit because it allows an asylum applicant to live and work in a protected status in the United States during the entire course of the application process. Once granted, the recipient and his or her spouse and children are entitled to remain permanently in the United States with the freedom to leave and return as they wish, and without fear that they will be returned to the place where they fear harm.

Finally, an individual need not be from Tibet to qualify for asylum; individuals from any country outside the United States, who meet the criteria listed above, may qualify for asylum protection.

If you have any questions regarding eligibility or the process please contact us. We are here to help.

Today we’re going to talk about the E-2 visa and how it applies to franchises. As we’ve talked about in previous articles, the E2 visa allows foreign investors to set up a U.S. company, invest in that company, and obtain a visa to run the company for up to 5 years with unlimited renewals, as long as the business is functioning and creating/maintaining jobs.

There are lots of people who are trying to come to the U.S. and want to start a business. When a foreign national comes in to start anew business, the government has no idea if that business is going to be successful or create any jobs. Franchising, however, is a natural fit for the E-2 visa because the government sees a franchise as a proven system and a more reliable business model than a startup that is unknown to them.

The most important thing about a franchise is that it incorporates employees. It can be any scale from 2 to 200, i.e. whatever number of employees are necessary for that specific location to function, to generate revenue and be successful. So once a foreign national has made the decision to purchase a franchise, they will create jobs which is the most important element of the E-2 visa application. When they want to renew their E-2 visa, the most important factor that’s taken into consideration is whether they have or haven’t created and maintained jobs. So, the franchise is not only the great American business model but it’s also the ideal business model for E-2 investors.

Which franchise should they select?

There are consulting firms available that help prospective franchisees. They work with individuals who are thinking about being entrepreneurs and/or franchisees. They sit and get to know the individuals:

– Assess their skills and experience

– Discuss their goals

– Investigate their interests

– Research the financial picture

– Determine their preferences

Once the assessment is done, these specialized firms help point them in the right direction, finding the right fit, from skill set to investment level to the kind of support they want, and matching them with franchises that are out there and coaches them through the entire process.

Everyone knows the big franchises: McDonald’s, Starbucks, etc. What is important to point out is that there are great franchises out there that most people have never heard of, but they have phenomenal systems in place for prospective franchisees. Franchising is great for E-2 investors because of these strong and proven systems that clients are buying when they buy the franchise. The name brand really doesn’t matter. The franchise system will provide answers to:

– What’s the marketing plan?

– What about the sales plan?

– What about operations?

– What about accounting?

– How does everything work?

Franchising is a proven product. It’s been done by the home office, and it’s been done by other franchisees. Some franchises may have only 2 franchisees, while others have thousands. This means the E-2 investor has a whole support network in place to help grow their business. It also means that, since these businesses depend on manpower, jobs will be created, thus meeting the most important criteria in visa qualification.

The E-2 visa is perfect because essentially the foreign national signs a franchise agreement with the franchise of their choice, pays the franchise fee and then can choose the location where they want to reside. So if the foreign national wants to live in, let’s say Pompano Beach, Florida, or the west coast of Florida, or northern California, or the badlands of North Dakota, they can find a franchise that, having already done the research and knowing that it should be profitable, wants to expand to that area.

The most important step is to choose the right franchise through a franchise broker, and then to make sure to work with the right immigration attorney to structure the purchase and set up the business in a way that will qualify for the E-2 visa.

What happens when you are a foreign national looking for a job and the H-1B visa has been met? You need to think outside the box and be strategic about your search. Here is a brief guide regarding H-1B cap-exempt sponsors.

This year approximately 2/3 of H-1B petitions were returned as innocent victims of the hated H-1B visa lottery. This leaves only current H-1B holders and candidates looking for H-1B exempt sponsors as those still able to get a new H-1B sponsorship between now and next April.

H-1B cap exemptions are based on determinations by the USCIS on the employment or an offer of employment in three categories:

1. An institution of higher education

2. A affiliated or related nonprofit entity

3. A nonprofit or government research organization

There has been a lot of confusion as to what entities qualify for this exemption, therefore we would like to give you a quick overview of the 3 organizational types that have cap exemptions:

1. An institution of higher education is commonly considered to be a college or university.

2. An affiliated or related nonprofit entity is an organization that is connected or associated with an institution of higher education. This is usually through shared ownership or control by the same ownership board operated by an institution of higher education.

3. A nonprofit or governmental research organization is an institution that is primarily engaged in basic research and/or applied research in different fields.

Here are two examples provided by USCIS to demonstrate how the exemption works. These examples should clarify how the organizations fall within the three aforementioned categories.

Example 1:

A medical fellow in pediatrics has been employed at a qualifying non-profit university medical center for two years in H-1B status. At the end of the fellowship, the doctor will become a member of Company C, a private pediatrics practice group which has its primary offices within the university medical center and predominantly trains medical students and treats patients in the medical center. The doctor will be doing exactly the same work that he did during his fellowship, including remaining on the university medical center’s faculty, but for reasons related to hospital billing practices and medical malpractice insurance requirements, his technical, and therefore petitioning employer will be the private pediatrics practice group.

In this scenario, the individual would qualify for an H-1B exemption because the doctor is working at an organization connected to the university. The doctor is performing the same work that he did while employed directly by the university medical center. The doctor remains on the university’s faculty and continues to train and educate students while treating patients at the medical center.

Example 2:

Company D, a for-profit market research firm that would not otherwise be a qualifying institution, files an H-1B petition on behalf of a direct employee. The H-1B petition states that the alien beneficiary will be conducting a specific kind of market research on-site at a qualifying university. In addition, the petition states that the university has a specialized research tool that can only be accessed from its facilities and that the alien beneficiary’s research will be conducted for the benefit of the petitioner’s clients and business, and not for the university.

In this example, the individual would NOT qualify for an H-1B cap exemption. The individual is only located at the university and there is no work relationship that connects the university to the work done by the applicant. The work done by the individual is solely for the for-profit company and not the qualifying institution.

These situations show us the distinct difference between what entities qualify for a cap exemption and what work relation is needed to show a relationship in cases of an affiliated or related organization to that qualifying entity. If you believe you qualify for an H-1B exemption or have any questions about the topics we discussed, please contact us at info@smalawyers.com for further information.

Starting April 1, 2015, the United States Citizenship and Immigration Services (USCIS) will begin accepting H1-B visa petitions, used by U.S. employers to hire skilled professionals from abroad. If lessons are to be learned from the last two years, employers who are serious about hiring a foreign national should start planning their strategy and preparing their paperwork NOW.

What many employers do not realize is that two potential time-consuming obstacles exist that may make the process longer – measures that have to be taken before H-1B applications are accepted on April 1st. Since there has been no progress on comprehensive immigration reform, advocates are expecting the same scenario to play out as last year:

– It is anticipated that all 20,000 visa Master’s cap will be met and surpassed in the first week, resulting in a random lottery selection of cases to adjudicate.

– It is anticipated that all 65,000 visa non-Master’s cap will be met and surpassed in the first week, resulting in a random lottery selection of cases to adjudicate.

– Last year, 172,500 applications were filed in the first week for the combined 85,000 spots and BOTH caps were met immediately.

– All applications which do not get selected in the lottery will be returned, envelope unopened, and the candidates (foreign national beneficiaries on whose behalf the petitions are filed) will either have to apply under another visa category or wait one more year to apply.

In order to sponsor a candidate for an H1-B visa, employers first are required to provide what is called a Labor Condition Application (LCA), and these applications require the verification of the company’s Federal Employer Identification Number (FEIN).

If a company has never sponsored an H1-B visa candidate, or if it has reorganized or changed its name, it is likely to face a delay in the verification of its FEIN. The prospective employer should give itself a cushion of 4-6 weeks to get the FEIN and LCA approved. If an employer takes too long to submit its LCA, it is possible that it will not be processed in time to be able to submit the H-1B on time, since the H-1B petition requires an approved LCA, signed in original by the company representative.

Luckily the fate of H1-B petitioners and their prospective employers does not rest entirely on the outcome of the lottery. A good immigration attorney will conduct a parallel evaluation for alternative visa options that can be used in place of an H1-B, if necessary. They are sometimes of a shorter duration than the H1-B, and may carry more restrictions, but can offer a stop-gap solution so that the foreign candidates are not lost forever.

For more information, please see my video detailing all the alternative visas that may be available.

You have been forewarned: If you are a U.S. company interested in hiring a foreign national for a professional position, the time to act is NOW.

{4:54 minutes to read} The E-2 visa is known as the Treaty Investor visa. We’ve talked about this visa in past blogs, but to refresh, essentially anyone who comes from one of the 80 countries that have a treaty with the U.S., can set up any legal model of a business in the U.S., invest in that business, and then through their investment get a visa for themselves and for their dependent family members.

There are many aspects of real estate that are attractive to a foreign national. An E-2 investor can set up their own company and depending on the scale of the business they want to create, they can go into:

— Purchase/Sale;

— Construction;

— Property Management;

— Design;

For E-2 purposes they must hire U.S. nationals or legal permanent residents. The investor should set up a business where they have administrative staff, especially if they need to do sales or acquisitions. If they are interested in construction or property management, it will be beneficial to employ individuals that have local market knowledge, because that is where the local job creation is going to come in.

Just like any E-2 visa, if the principal investor is the only one that is benefiting, it doesn’t pass what is called the marginality test,which requires that the U.S. economy and U.S. citizens benefit from the business. Both part-time and full-time jobs are acceptable but a model based strictly on project-based jobs and subcontracted labor will not suffice. The E-2 investor must set up a business that incorporates creation of some permanent positions.

Once the business has been established and the requirement for permanent employment is met, the company can hire consultants to review investments, strategy and provide local market knowledge.

Rental properties, whether residential or commercial, can be a particularly conservative investment option and require a variety of jobs to run properly. Covered areas can include (but are not limited to):

— Acquisition

— Deal Structure

— Financing

— Construction Management

–Property Management & Maintenance

–Sales/Leasing

If the foreign investor has a construction background flipping might be an option. ‘Flipping’ is the business of purchasing, renovating and reselling properties. With this model the investor would need employees for many of the same tasks as the rental owner – Acquisitions, Financing, Construction Manager, (etc), as well as a construction crew.

So the E-2 is one way to marry a real-estate investment with a business in order to get a visa. The E-2 cannot be utilized only for residential use or as a pure investment where there is no job creation. There must be a benefit given to the U.S.economy in the forms of job and revenue creation. The bottom line is that although there is no limitation on what services the company provides within the real estate industry, it must always result in the creation of jobs.

Most importantly, those interested in starting a real estate business and getting a visa to run it must consult and work with experienced immigration attorneys and companies who specialize in this niche industry, both as consultants as well as potential business partners.

USCIS announced on February 24th that they’re going to extend the eligibility for employment authorization to certain H-4 visa dependent spouses. An H-4 dependent spouse is the husband or wife of someone who holds an H1-B employment visa.

The H4 Visa

The H-4 visa has traditionally been considered useless except that it allowed spouses to be physically present in the U.S. This is because it does not allow the spouse to work and therefore has been nicknamed the “Shopping Visa.”

Essentially, if you get an H1-B visa, you have up to 6 years to work for your employer, or other employers if you change sponsors, but unless your spouse changes from the H-4 to another visa that allows them to work, they literally have their hands tied as far as being able to find gainful employment. This has been problematic because it discourages married couples from coming to the U.S. under the H-1B category.

A Change in Policy

USCIS recently announced that in specific instances they were going to start allowing spouses holding H-4 visas to apply for employment authorization. It is a very technical situation, but applies when their spouses have been approved for an I-140, Immigrant Petition for Alien Worker, and have extended their visas past the usual limit of 6 years.

There are very limited situations where this actually applies. It is helpful for foreign nationals who are from countries with long backlogs on immigrant visa processing, most notably India and China, where many H-1B visa holders originate from. What this means is that for six years as an H-4 visa holder there is nothing that can be done to work, unless the H-4 visa holder independently qualifies for an employment visa.

Filing Petitions for Work Authorization

On May 26th, USCIS is expected to begin accepting petitions for work authorization. According to the estimates on the website, there are potentially as many 180,000 people who will apply.

In a lot of cases however, the H1-B visa holders are not sponsored by their employers, or don’t have anyone that’s sponsoring them for a green card. In these cases, the Form I-766 will not apply.

If you are the spouse of an H1-B visa holder and have questions regarding your eligibility to get a work authorization, or if you do not want to wait six years with the “shopping visa,” and are interested in studying, training or working, there are plenty of alternative visa options for you. In that case, it is recommended that you speak with an experienced immigration attorney to guide you through your options.

1. What are the reasons for the Executive Action announced by the President on November 20th?

President George W. Bush gave a national TV address in May, 2006 to address the immigration problem in the U.S. and the need to reform the immigration system. He said that the vast majority of illegal immigrants were decent people who worked hard, supported their families, practiced their faith, and led responsible lives. They were a part of American life but they were beyond the reach and protection of American law.

The situation had not changed in 8 years and recognizing that when he took office, President Obama vowed to enact changes. For 6 years, he tried to do so through legislation. In June, the Senate passed a bill with a resounding 68 to 32 vote, giving many people real hope that the House of Representatives would follow suit, and that the comprehensive immigration reform that President Obama had vowed to make a reality, would come to fruition.

14 months later, nothing had happened. The House had not moved on this and it was left to rot. President Obama decided to do what he and many U.S. presidents have done over the course of U.S. history: Declare an Executive Action to move forward his mandate as much as possible. Unfortunately, there are certain much-needed changes in immigration laws that will not happen and so this Executive Action will not fix what is broken, it will be only a band-aid.

Inevitably, the Presidential election of 2016 will determine what happens with the future of immigrants in the U.S. I hope that President Obama’s message rings loud and clear: “We were strangers once too” – Except for the small percentage of Americans who are Native American, we are all immigrants or descendants of immigrants and we should empathize with and embrace those who also share the same dream, ethics and morals and want to make this country stronger and greater.

2. Does this Executive Action build on the previous Executive Actions on Immigration?

Yes. It expands on two existing reforms created by Executive Action:

- Deferred Action for Childhood Arrivals (DACA)

- Provisional Waivers of Unlawful Presence

It also adds some other proposed measures:

a. DACA was extended to ALL people who came to the U.S. under the age of 16 and who arrived before January 1, 2010. Unfortunately the age was not extended to 18, which would have been logical, since 18 is the legal age of majority in the U.S. This means all those who came here between the age of 16 and 18 are not eligible, even if they have lived here for more than 5 years.

b. A waiver is in effect a legal pardon for an immigration infraction, in this case an illegal overstay and/or entry without inspection (Illegal entry without documents). Currently, only spouses and minor children of U.S. citizens are allowed to apply to obtain a provisional waiver, if a visa is available.

This Executive Action will expand the reach of this waiver to spouses, sons or daughters of lawful permanent residents and sons and daughters of U.S. citizens to get a waiver. Before this existed people would have to leave the country with the hope of getting the waiver approved at the US Embassy in their native country, which was a very risky proposition.

c. DAPA – will allow adults who have been in the U.S. since before 2010 and have children born in the U.S., to apply for Deferred Action and Employment Authorization.

d. What is labeled “Modernization, improvement and clarification of immigrant and nonimmigrant programs to grow our economy and create jobs” – Supposed to be used for U.S. businesses, foreign investors, researchers, inventors and skilled foreign workers. – This is still pretty vague for now.

e. Naturalization – Push to make the process more accessible and clear

3. Which of the reforms will have the most impact?

Most definitely DAPA – deferred action for parents – Simply put this will potentially benefit over 4 million people, because it covers all people who have been continuously in the US for more than 5 years and who have had children born at any time up to November 20, 2014. That is because all children born in the U.S. become U.S. citizens and under the law as it stands right now, US born children cannot sponsor their parents for legal permanent residence until they turn 21. This has created many families with two extremes in the same household; USC children and parents who are undocumented and have no status. The idea is to keep these families together.

The impact will be felt in the economy, as many of those eligible for DAPA are currently working illegally, without valid employment authorization. This will create a situation where they will apply individually and if approved, they will be given employment authorization. Employers will have to choose between putting them on the payroll, which means paying them minimum wage plus whatever benefits are required by law, or letting them go. Employers who exploit as part of their business model, will end up employing newly arrived, undocumented foreigners or those who don’t qualify for this or any other new remedy.

It’s important to note that anyone with a criminal record will probably not qualify for any of these measures. Since the President’s priority under what is called Prosecutorial Discretion is to continue to deport all criminals, this will not change. Anyone who has a criminal record will want to assess whether it’s worth even applying.

4. What are the greatest weaknesses of the Executive Action?

a. There is no clear path to citizenship, or legal residence and there is not even granting of any real conditional residence. People will be allowed to work legally and be protected from deportation, but they will not be given a visa status of any kind, which means no clear path to legal permanent residence and also no ability to travel and leave the country. In essence they will be allowed to remain trapped here, as they already are. If they leave because there is no mechanism for advanced parole created, then they will be barred from reentry for 10 years. There is no mention of advanced parole in the information provided to date, so right now this is simply a way for them to work legally but get no other benefits. It is a step out of the shadows but not necessarily a step forward.

b. The much-needed changes, like the elimination of annual caps for visa categories like H-1B or EB-5, are not within the purview of an Executive Action. Therefore, it is not possible to address the true fundamental changes/overhauls that are needed in the system and will not be fixed until Congress steps in and does something about it.

5. What does the future hold for the immigration system?

It all depends on Congress coming together, making a bill into a law and putting it into action. Until then, we can only apply these band-aids to the situation that don’t solve the cracked foundation this country is built on. If Republicans care enough about the Latino vote, they will be forced to move immigration reform forward in Congress or risk another Democratic president at the helm.